Federal Aviation Administration Accountability Enhancement Act

II 116TH CONGRESS 2D SESSION S. 4565 To amend title 49, United States Code, to rename the Aviation Safety Whistleblower Investigation Office and to establish an Office of Profes- sional Responsibility and an Office of the Ombudsman in the Federal Aviation Administration, and for other purposes. IN THE SENATE OF THE UNITED STATES SEPTEMBER 10, 2020 Mr. WICKER introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend title 49, United States Code, to rename the Avia- tion Safety Whistleblower Investigation Office and to establish an Office of Professional Responsibility and an Office of the Ombudsman in the Federal Aviation Administration, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Aviation Ad- 4 ministration Accountability Enhancement Act’’. 5 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4565 IS SEC. 2. ENHANCEMENT OF THE AVIATION SAFETY WHIS- 1 TLEBLOWER INVESTIGATION OFFICE IN THE 2 FEDERAL AVIATION ADMINISTRATION. 3 (a) RENAMING OF THE OFFICE.—Section 106(t)(1) 4 of title 49, United States Code, is amended by striking 5 ‘‘an Aviation Safety Whistleblower Investigation Office’’ 6 and inserting ‘‘the Office of Accountability and Whistle- 7 blower Protection’’. 8 (b) DUTIES.— 9 (1) IN GENERAL.—Section 106(t)(3) of title 49, 10 United States Code, is amended— 11 (A) in subparagraph (A)— 12 (i) in clause (i)— 13 (I) by inserting ‘‘and investigate 14 in accordance with subsection (w)’’ 15 after ‘‘receive’’; and 16 (II) by striking ‘‘(if the certifi- 17 cate holder does not have a similar in- 18 house whistleblower or safety and reg- 19 ulatory noncompliance reporting proc- 20 ess)’’; 21 (ii) in clause (ii), by striking ‘‘and’’ at 22 the end; 23 (iii) in clause (iii), by striking the pe- 24 riod at the end and inserting ‘‘; and’’; and 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4565 IS (iv) by adding at the end the fol- 1 lowing: 2 ‘‘(iv) investigate in accordance with 3 subsection (w) any misconduct alleged or 4 discovered as a result of an investigation 5 conducted pursuant to clause (i); 6 ‘‘(v) receive and investigate in accord- 7 ance with subsection (w) complaints and 8 information concerning whistleblower retal- 9 iation by employees of the Agency; 10 ‘‘(vi) assess the results of any inves- 11 tigation under clause (i), (iv), or (v), and 12 if there is a finding of whistleblower retal- 13 iation or related misconduct, provide a rec- 14 ommendation for a range of disciplinary 15 actions to the Agency proposing official; 16 ‘‘(vii) if the Agency proposing official 17 deviates from the recommended range of 18 disciplinary action described in clause (vi), 19 or if the Agency deciding official deviates 20 from the range of disciplinary actions pro- 21 posed by the Agency proposing official, no- 22 tify Congress in writing not later than 10 23 days after such deviation; and 24 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4565 IS ‘‘(viii) comply with all legal require- 1 ments concerning disciplinary actions re- 2 lated to whistleblower retaliation.’’; 3 (B) in subparagraph (B), by striking ‘‘sub- 4 paragraph (A)(i)’’ and inserting ‘‘clause (i), 5 (iv), or (v) of subparagraph (A)’’; 6 (C) in subparagraph (C), by striking ‘‘sub- 7 paragraph (A)(i)’’ and inserting ‘‘clause (i), 8 (iv), or (v) of subparagraph (A)’’; and 9 (D) in subparagraph (D)— 10 (i) by striking ‘‘assessment’’ and in- 11 serting ‘‘investigation’’; 12 (ii) by striking ‘‘subparagraph (A)(i)’’ 13 and inserting ‘‘clause (i), (iv), or (v) of 14 subparagraph (A)’’; and 15 (iii) by inserting ‘‘, misconduct, or 16 whistleblower retaliation’’ after ‘‘aviation 17 safety’’. 18 (2) LIMITATION.—Section 106(t)(2) of title 49, 19 United States Code, is amended by adding at the 20 end the following: 21 ‘‘(E) LIMITATION OF DUTIES.—The Ad- 22 ministrator may only assign to the Director re- 23 sponsibilities relating to the duties of the Office 24 described in paragraph (3).’’. 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4565 IS (3) CONFORMING AMENDMENTS.—Section 1 106(t) of title 49, United States Code, as amend- 2 ed— 3 (A) in paragraph (5), by inserting ‘‘, mis- 4 conduct, or whistleblower retaliation’’ after 5 ‘‘aviation safety’’; 6 (B) in paragraph (7)— 7 (i) in the matter preceding subpara- 8 graph (A)— 9 (I) by striking ‘‘October 1’’ and 10 inserting ‘‘November 15’’; and 11 (II) by inserting ‘‘directly’’ after 12 ‘‘the Director shall submit’’; and 13 (ii) in subparagraph (A), by striking 14 ‘‘paragraph (3)(A)(i) in the preceding 12- 15 month period’’ and inserting ‘‘clause (i), 16 (iv), or (v) of paragraph 3(A) in the pre- 17 ceding fiscal year’’; and 18 (C) by adding at the end the following: 19 ‘‘(8) STAFF AND RESOURCES.—The Adminis- 20 trator shall ensure that the Director has such staff, 21 resources, and access to information as may be nec- 22 essary to carry out the functions of the Office.’’. 23 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4565 IS SEC. 3. OFFICE OF THE WHISTLEBLOWER OMBUDSMAN IN 1 THE FEDERAL AVIATION ADMINISTRATION. 2 Section 106 of title 49, United States Code, is 3 amended by adding at the end the following: 4 ‘‘(u) OFFICE OF THE WHISTLEBLOWER OMBUDS- 5 MAN.— 6 ‘‘(1) ESTABLISHMENT.—The Administrator 7 shall establish in the Federal Aviation Administra- 8 tion (in this subsection referred to as the ‘Agency’) 9 an Office of the Whistleblower Ombudsman (in this 10 subsection referred to as the ‘Office’). 11 ‘‘(2) OMBUDSMAN.—The Office shall be headed 12 by an Ombudsman, who shall be appointed by the 13 Administrator. 14 ‘‘(3) DUTIES.—The Ombudsman shall carry out 15 the following duties: 16 ‘‘(A) Educate Agency employees about pro- 17 hibitions on retaliation and any specific rights 18 or remedies with respect to any retaliatory 19 practice. 20 ‘‘(B) Serve as an independent confidential 21 resource for Agency employees to discuss any 22 specific retaliation allegation and available 23 rights or remedies based on the circumstances. 24 ‘‘(C) Coordinate with Human Resource 25 Management, the Office of Accountability and 26 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4565 IS Whistleblower Protection, the Office of Profes- 1 sional Responsibility, and the Office of the 2 Chief Counsel, as necessary. 3 ‘‘(D) Coordinate with the Office of the In- 4 spector General of the Department of Transpor- 5 tation’s Whistleblower Protection Coordinator 6 and the Office of the Special Counsel, as nec- 7 essary. 8 ‘‘(E) Conduct outreach and training within 9 the Agency to mitigate retaliation and promote 10 timely and appropriate processing of any pro- 11 tected disclosure or allegation of retaliation. 12 ‘‘(4) STAFF AND RESOURCES.—The Adminis- 13 trator shall ensure that the Ombudsman has such 14 staff, resources, and access to information as may be 15 necessary to carry out the functions of the Office.’’. 16 SEC. 4. OFFICE OF PROFESSIONAL RESPONSIBILITY IN THE 17 FEDERAL AVIATION ADMINISTRATION. 18 Section 106 of title 49, United States Code, as 19 amended by section 3, is amended by adding at the end 20 the following: 21 ‘‘(v) OFFICE OF PROFESSIONAL RESPONSIBILITY.— 22 ‘‘(1) ESTABLISHMENT.—The Administrator 23 shall establish in the Federal Aviation Administra- 24 tion (in this subsection referred to as the ‘Agency’) 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4565 IS an Office of Professional Responsibility (in this sub- 1 section referred to as the ‘Office’). 2 ‘‘(2) DUTIES.—The Office shall carry out the 3 following duties: 4 ‘‘(A) Receive any complaints and informa- 5 tion concerning misconduct by managers within 6 the Agency. 7 ‘‘(B) Assess any complaint and informa- 8 tion concerning misconduct by managers re- 9 ceived under this paragraph and determine 10 whether sufficient information exists to initiate 11 an investigation in accordance with subsection 12 (w). 13 ‘‘(C) Except as provided in subparagraph 14 (D), refer each misconduct case, based on the 15 nature of the allegations, to— 16 ‘‘(i) the Office of the Inspector Gen- 17 eral of the Department of Transportation 18 for investigation and appropriate referral, 19 as necessary; or 20 ‘‘(ii) the appropriate venue within the 21 Agency for investigation in accordance 22 with subsection (w) and adjudication in ac- 23 cordance with subsection (x), unless the 24 Office decides to retain such case. 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4565 IS ‘‘(D) Retain and independently investigate 1 in accordance with subsection (w) any allega- 2 tion, other than an allegation investigated by 3 the Office of Accountability and Whistleblower 4 Protection or referred outside of the Agency, 5 that carries a possible penalty of suspension of 6 pay for more than 14 days. 7 ‘‘(E) Record and track the disposition of 8 each misconduct case received under this para- 9 graph. 10 ‘‘(3) STAFF AND RESOURCES.—The Adminis- 11 trator shall ensure that the Office has such staff, re- 12 sources, and access to information as may be nec- 13 essary to carry out the functions of the Office. 14 ‘‘(4) DEFINITION.—For purposes of this sub- 15 section, the term ‘manager’ means an employee of 16 the Agency who is a supervisor or management offi- 17 cial, as defined in section 7103(a) of title 5, United 18 States Code.’’. 19 SEC. 5. MISCONDUCT INVESTIGATIONS AND ADJUDICA- 20 TIONS IN THE FEDERAL AVIATION ADMINIS- 21 TRATION. 22 Section 106 of title 49, United States Code, as 23 amended by section 4, is amended by adding at the end 24 the following: 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4565 IS ‘‘(w) MISCONDUCT INVESTIGATIONS.— 1 ‘‘(1) ESTABLISHMENT OF POLICY.— 2 ‘‘(A) IN GENERAL.—The Administrator 3 shall establish an investigative policy that gov- 4 erns any investigation of misconduct by a man- 5 ager conducted by the Federal Aviation Admin- 6 istration (in this subsection referred to as the 7 ‘Agency’). 8 ‘‘(B) PRESERVATION OF COLLECTIVE BAR- 9 GAINING AGREEMENTS.—The investigative pol- 10 icy established under subparagraph (A) shall 11 not apply to, or in the future, be extended by 12 the Administrator to apply to, any employee 13 covered by or eligible to be covered by a collec- 14 tive bargaining agreement entered into by the 15 Agency. 16 ‘‘(2) REQUIREMENTS.—The investigative policy 17 established under paragraph (1) shall require the 18 utilization of investigative best practices to ensure 19 independent and objective investigation and accurate 20 recording and reporting of such investigation, in- 21 cluding— 22 ‘‘(A) managing case files to ensure the in- 23 tegrity of the information contained in such 24 case files; 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4565 IS ‘‘(B) conducting interviews in a manner 1 that ensures truthful answers and accurate 2 records of such interviews; 3 ‘‘(C) coordinating with the Office of the 4 Inspector General of the Department of Trans- 5 portation, the Office of the Special Counsel, 6 and the Attorney General, as necessary; and 7 ‘‘(D) completing investigations in a timely 8 manner. 9 ‘‘(3) DEFINITION.—For purposes of this sub- 10 section, the term ‘manager’ has the meaning given 11 such term in subsection (v)(4). 12 ‘‘(x) DISCIPLINE MANAGEMENT.— 13 ‘‘(1) ESTABLISHMENT OF POLICY.— 14 ‘‘(A) IN GENERAL.—The Administrator 15 shall establish a discipline management policy 16 that governs any adjudication of an investiga- 17 tion of misconduct by a manager conducted by 18 the Federal Aviation Administration (in this 19 subsection referred to as the ‘Agency’). 20 ‘‘(B) PRESERVATION OF COLLECTIVE BAR- 21 GAINING AGREEMENTS.—The discipline man- 22 agement policy established under subparagraph 23 (A) shall not apply to, or in the future, be ex- 24 tended by the Administrator to apply to, any 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4565 IS employee covered by or eligible to be covered by 1 a collective bargaining agreement entered into 2 by the Agency. 3 ‘‘(2) REQUIREMENTS.—The discipline manage- 4 ment policy established under paragraph (1) shall 5 require— 6 ‘‘(A) except as provided in subsection 7 (t)(3)(A) or in a case where the allegation in- 8 volved carries a possible penalty of suspension 9 of pay for 14 days or less, the Administrator to 10 appoint an individual to serve as the Agency 11 proposing official in any adjudication conducted 12 by the Agency; 13 ‘‘(B) except in a case where the allegation 14 involved carries a possible penalty of suspension 15 of pay for 14 days or less, the Administrator to 16 appoint an individual to serve as the Agency de- 17 ciding official in any adjudication conducted by 18 the Agency; 19 ‘‘(C) the Agency to conduct any adjudica- 20 tion in accordance with best practices; and 21 ‘‘(D) the Agency to complete— 22 ‘‘(i) the discipline proposal process, 23 including an opportunity for employee re- 24 sponse, not later than 60 days after the re- 25 VerDate Sep 11 2014 00:57 Sep 12, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4565.IS S4565 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4565 IS ceipt of a completed misconduct investiga- 1 tion; and 2 ‘‘(ii) the decision process, including 3 any employee appeal, not later than 60 4 days after the conclusion of the discipline 5 proposal process. 6 ‘‘(3) DEFINITION.—For purposes of this sub- 7 section, the term ‘manager’ has the meaning given 8 such term in subsection (v)(4).’’. 9 Æ [Text truncated for display. 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